Late last month, I traveled to Amman, Jordan, and met with the family and lawyers of former Iraqi President Saddam Hussein. I told them that I would help in his defense in any way I could.
The news, when it found its way back to the United States, caused something of a stir. A few news reports were inquisitive -- and some were skeptical -- but most were simply dismissive or derogatory. "There goes Ramsey Clark again," they seemed to say. "Isn't it a shame? He used to be attorney general of the United States and now look at what he's doing."
So let me explain why defending Saddam Hussein is in line with what I've stood for all my life and why I think it's the right thing to do now.
That Hussein and other former Iraqi officials must have lawyers of their choice to assist them in defending against the criminal charges brought against them ought to be self-evident among a people committed to truth, justice and the rule of law.
Both international law and the Constitution of the United States guarantee the right to effective legal representation to any person accused of a crime. This is especially important in a highly politicized situation, where truth and justice can become even harder to achieve. That's certainly the situation today in Iraq. The war has caused the deaths of tens of thousands of Iraqis and the widespread destruction of civilian properties essential to life. President Bush, who initiated and oversees the war, has manifested his hatred for Hussein, publicly proclaiming that the death penalty would be appropriate.
The United States, and the Bush administration in particular, engineered the demonization of Hussein, and it has a clear political interest in his conviction. Obviously, a fair trial of Hussein will be difficult to ensure -- and critically important to the future of democracy in Iraq. This trial will write history, affect the course of violence around the world and have an impact on hopes for reconciliation within Iraq.
Hussein has been held illegally for more than a year without once meeting a family member, friend or lawyer of his choice. Though the world has seen him time and again on television -- disheveled, apparently disoriented with someone prying deep into his mouth and later alone before some unseen judge -- he has been cut off from all communications with the outside world and surrounded by the same U.S. military that mistreated prisoners at Abu Ghraib and Guantanamo.
Preparation of Hussein's defense cannot begin until lawyers chosen by him obtain immediate, full and confidential access to him so they can review with him events of the last year, the circumstances of his seizure and the details of his treatment. They must then have time to thoroughly discuss the nature and composition of the prosecution and the court, the charges that may be brought against him, and his knowledge, thoughts and instructions concerning the facts of the case. And finally, they must have the time for the enormous task of preparing his defense.
The legal team, its assistants and investigators must be able to perform their work safely, without interference, and be assured that their client's condition and the conditions of his confinement enable him to fully participate in every aspect of his defense.
International law requires that every criminal court be competent, independent and impartial. The Iraqi Special Tribunal lacks all of these essential qualities. It was illegitimate in its conception -- the creation of an illegal occupying power that demonized Saddam Hussein and destroyed the government it now intends to condemn by law.
The United States has already destroyed any hope of legitimacy, fairness or even decency by its treatment and isolation of the former president and its creation of the Iraqi Special Tribunal to try him.
Among the earliest photographs it released is one showing Hussein sitting submissively on the floor of an empty room with Ahmad Chalabi, the principal U.S. surrogate at that moment, looming over him and a picture of Bush looking down from an otherwise bare wall.
The intention of the United States to convict the former leader in an unfair trial was made starkly clear by the appointment of Chalabi's nephew to organize and lead the court. He had just returned to Iraq to open a law office with a former law partner of Defense Undersecretary Douglas J. Feith, who had urged the U.S. overthrow of the Iraqi government and was a principal architect of U.S. postwar planning.
The concept, personnel, funding and functions of the court were chosen and are still controlled by the United States, dependent on its will and partial to its wishes. Reform is impossible. Proceedings before the Iraqi Special Tribunal would corrupt justice both in fact and in appearance and create more hatred and rage in Iraq against the American occupation. Only another court -- one that is actually competent, independent and impartial -- can lawfully sit in judgment.
In a trial of Hussein and other former Iraqi officials, affirmative measures must be taken to prevent prejudice from affecting the conduct of the case and the final judgment of the court. This will be a major challenge. But nothing less is acceptable.
Finally, any court that considers criminal charges against Saddam Hussein must have the power and the mandate to consider charges against leaders and military personnel of the U.S., Britain and the other nations that participated in the aggression against Iraq, if equal justice under law is to have meaning.
No power, or person, can be above the law. For there to be peace, the days of victor's justice must end.
The defense of such a case is a challenge of great importance to truth, the rule of law and peace. A lawyer qualified for the task and able to undertake it, if chosen, should accept such service as his highest duty.